SIR DAVID WILLIAMS LECTURE 2019

PRINCIPLE AND PRAGMATISM IN PUBLIC LAW

Brenda Hale1

It is such a pleasure as well as a privilege to be giving thus lecture in memory of

Sir David Williams – a great academic and author, a great teacher and a great

University leader but above all a great person. About 45 years ago he was an

external examiner at the University of Manchester and we entertained the external

examiners and staff to supper in our home in Derbyshire. But David went missing.

I discovered him chatting on the stairs with my two-year-old daughter who, never

wanting to be left out, had crept downstairs to see what was going on. He was

much more interested in entertaining her than in the rest of us. I am sure that his

family here today would recognize that!

But what to talk about to honour such a man? Earlier this year I gave the

Freshfields lecture in this Faculty on the subject of ‘Principle and pragmatism in

private law’. This was, of course, an echo of the Hamlyn lectures given by the

late, great Patrick Atiyah in 1987, on ‘Pragmatism and Theory in English Law’.

He discussed the tendency of English lawyers – by which he meant practitioners

and judges rather than academics – not only to be more inclined towards the

1
With grateful thanks to Thomas Fairclough and Penelope Gorman, Judicial Assistants at the Supreme
Court of the United Kingdom, for all their help. The views expressed are my own.

1
pragmatic and hostile to the theoretical but positively to glory in this approach.

He went on to consider the strengths and weaknesses of the pragmatic tradition.

He deplored ‘a more general tendency to decide cases ad hoc, to try to settle

disputes by wholly pragmatic means, without regard to the principles of law and

the broader purposes which those principles must have’ (p 126). I found it easy

earlier this year to consider examples where judicial pragmatism had indeed

overcome principle in contract, tort and family law.

So it seemed obvious to suggest that this lecture should be entitled ‘Principle and

pragmatism in public law’. But it has not turned out such an easy lecture to write.

It is possible to craft pragmatic solutions to private law disputes between

individuals or businesses. In private law this can be dressed up under such

concepts as ‘fair, just and reasonable’ or ‘public policy’. But is there an equivalent

in public law? I have picked out three topics: one which seems to me to be almost

entirely pragmatic rather than principled, and that is the practice sometimes

known as ‘deference’; one which seems to me to be dressed up as principled but

is arguably more pragmatic, and that is the doctrine of legitimate expectation; and

one which seems to me to be soundly based in principle, even though its results

may sometimes seem far from pragmatic, and that is the principle of legality.

2
Deference

Judicial deference is the process whereby courts defer, or attach over-whelming

weight, to the judgments of Parliament or the executive on certain matters. Of

course, the judges don’t like the term ‘deference’. In the Pro-Life Alliance case,2

Lord Hoffmann did not think that its ‘overtones of servility, or perhaps gracious

concession’ were appropriate to describe what was happening. In a society based

on the rule of law and the separation of powers it was necessary to decide which

branch of government has the decision-making power and what those powers are.

In that case, the question was whether Parliament was entitled to make party

political broadcasts subject to the requirements of taste and decency to which all

other broadcasts were subject. That, in his view was a perfectly proper decision

for Parliament, as representative of the people, to make.

Then again, in the Lord Carlile case, 3 Lord Sumption suggested that academic

criticism of the concept ‘arises from the word, with its overtones of cringing

abstention in the face of superior status’ (para 22). Assigning weight to the

decision-maker’s judgment had nothing to do with deference in the ordinary sense

of the term. It had two sources: the constitutional principle of the separation of

powers and the ‘pragmatic view about the evidential value of certain judgments

2
R (ProLife Alliance) v BBC [2003] UKHL 23, [2004] 1 AC 185.
3
R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2014] UKSC 60, [2015] 1
AC 945.

3
of the executive, whose force will vary according to the subject-matter’. That case

was not about a decision taken by Parliament, but about a decision taken by the

Home Secretary that excluding a prominent Iranian dissident from entering the

country was conducive to the public good.

Deference is not the same as non-justiciability. It does not apply automatically

with reference to particular subject-matters and carries no presumption that the

court will have inadequate expertise. Each case is judged in its own context. It is

this variability which opens up the element of pragmatism: as Professor Jowell

observed, ‘there is no magic legal or other formula to identify “the discretionary

area of judgement” available to the reviewed body’4.

Like Professor Jowell, I don’t think that appeals to the separation of powers or to

the greater democratic legitimacy of executive decision-makers are a great deal

of help in enabling us to decide in which cases to ‘defer’ and in which cases not

to do so. It is, of course, correct that Parliament is accountable to the electorate

and the executive is accountable to Parliament. That is true of all legislative and

executive decision-making. It cannot invariably be a reason for deferring to what

Parliament or the executive has decided. The whole purpose of giving legal

recognition to individual human rights is to enable them to be asserted in the face

4 ‘Judicial Deference, Servility, Civility or Institutional Capacity?’ [2003] PL 592.

4
of decisions made by democratically accountable actors. We have to ask

ourselves very carefully which decisions we should respect and why.

It is important, I think, to distinguish between the decisions of Parliament, as

represented by Acts of Parliament, and the decisions of the executive. Judicial

views on deference to Parliament differ widely. Lord Steyn in his famous lecture,

‘Deference: a Tangled Story’ 5 endorses the statement of Madam Justice

McLachlin in the Supreme Court of Canada 6 on the limits of the deference

principle:

‘Care must be taken not to extend the notion of deference too

far…Parliament has its role: to choose the appropriate response to

social problems within the limiting framework of the Constitution.

But the courts also have a role: to determine, objectively and

impartially, whether Parliament’s choice falls within the limiting

framework of the Constitution. The courts are no more permitted to

abdicate their responsibility than is Parliament. To carry judicial

deference to the point of accepting Parliament’s view simply on the

view that the problem is so serious and the solution difficult, would

be to diminish the role of the courts in the constitutional process and

5
[2005] PL 346-359.
6
RJR MacDonald v Att-Gen (Canada) (1995) 3 SCR 199.

5
 to weaken the structure of rights upon which our constitution and

nation is founded’.

We do not, of course, have a written Constitution, but we do have a Human Rights

Act which expressly contemplates that the courts will consider the compatibility

of provisions in Acts of Parliament with the Convention rights: why else do we

have the duty of conforming interpretation in section 3(1) and the power to make

declarations of incompatibility in section 4? Furthermore, we have to have regard

to the jurisprudence of the European Court of Human Rights and other Council

of Europe organs. So what part should deference play in that process? Should the

courts take a different view of the respect owed to the judgment of Parliament

according to whether the matter is (a) one on which Strasbourg has made its view

clear, or (b) one on which Strasbourg has not yet expressed a definitive view, or

(c) one which Strasbourg would regard as falling within the ‘margin of

appreciation’ allowed to Member States?

The last is the most difficult case. And in the case of Nicklinson,7 the Supreme

Court expressed a range of views. Most of you will know the facts, but here is a

brief recap.

7
[2014] UKSC 38, [2015] AC 657.

6
Mr Nicklinson had suffered a catastrophic stroke which left him almost

completely paralysed, unable to speak or carry out any physical functions on his

own except limited movements of his eyes and head, but he was not dependent

on life support. He communicated through the use of an eye-blink computer.

After some years he decided that enough was enough and wished to end his life.

But he did not wish to inflict upon his family the pain and suffering involved in

watching him starve himself to death. He wanted ‘a more humane and dignified

exit from the world’. The case began as an argument that having a doctor

administer a lethal injection would be justified under the common law defence of

necessity or duress of circumstances. It turned into an argument about assisted

suicide after it emerged that an Australian doctor had invented a machine which

could be activated to deliver a lethal drug by means of the eye-blink computer.

Hence, in the Supreme Court, the focus was on whether the absolute ban on

assisting suicide, contained in section 2 of the Suicide Act 1961, was

incompatible with Mr Nicklinson’s article 8 rights.

There was no doubt that his article 8 rights were engaged. In the cases of Haas,8

Koch9 and Gross,10 the European Court of Human Rights stated that:

8
Haas v Switzerland (2011) 53 EHRR 33.
9
Koch v Germany (2013) 56 EHRR 6.
10
Gross v Switzerland (2014) 58 EHRR 7.

7
 ‘an individual’s right to decide by what means and at what point his

or her life will end, provided she or he is capable of freely reaching

a decision on this question and acting in consequence, is one of the

aspects of the right to respect for private life within the meaning of

article 8 of the Convention.’

In Pretty v United Kingdom,11 however, the court had also taken the view that a

universal ban on assisting suicide, especially when coupled with a flexible

prosecution policy,12 was justified in order to protect vulnerable people. As a

supra-national court, they could fall back upon the wide margin of appreciation

accorded to Member States in an area where there is as yet no European consensus

in favour of permitting assisted suicide – quite the reverse.

When the Strasbourg court accords a wide margin of appreciation to Member

States, it is left to their own constitutional arrangements to decide what to do. So

should the Supreme Court leave the question entirely to Parliament? In other

words, is Parliament the sole arbiter of what is and is not compatible with the

Convention rights in United Kingdom law? Or should the Supreme Court address

the issues in proceedings brought under the Human Rights Act and reach

11
(2002) 35 EHRR 1.
12
An issue to which the House of Lords returned in R (Purdy) v DPP [2009] UKHL 45, [2010] 1 AC
345, and also in Nicklinson.

8
conclusions on them, of course leaving it to Parliament to decide whether the law

should be changed?

In Nicklinson, the Justices all, I think, took the view that there were occasions

when the courts could decide upon the United Kingdom’s solution to an issue

which Strasbourg would leave to the Member State. The House of Lords had done

this with Northern Ireland’s ban on joint adoptions by unmarried couples. 13 But

that was a ban contained in delegated, not primary legislation.

Four of the Justices in Nicklinson thought that the whole issue should be left to

Parliament and the court should not even express a view upon what the answer

was. Lord Sumption gave three reasons: first, it involved a choice between two

fundamental but mutually inconsistent moral values upon which there was no

consensus in society; second, Parliament had made the choice; third, the

Parliamentary process was a better way of resolving issues involving

controversial and complex issues of fact arising out of moral and social dilemmas

(paras 230-232). This is, of course, a view which he has since elaborated very

persuasively in his Reith lectures. Lord Hughes took the simple view that this was

very clearly a matter for Parliament (para 267). Lord Clarke agreed that

Parliament was the preferable forum and that imposing the personal opinions of

13
Re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] AC 173.

9
professional judges ‘would lack all constitutional legitimacy’ (para 293). Lord

Reed accepted that the Human Rights Act has entailed some adjustment of the

respective constitutional roles of the courts, the executive and the legislature, but

it did not eliminate the differences between them. It did not alter the fact that

certain issues were by their nature more suitable for determination by government

or Parliament than by the courts (para 296). Were these views pragmatic or

principled?

Five of the Justices thought that it would not be institutionally inappropriate for

the court to address the issue. Ruling it out would be an abdication of judicial

responsibility. Lord Neuberger observed that it was not possible precisely to

identify the boundary between the area where it is legitimate for the courts to step

in and the area where it is not (para 101). But he, along with Lord Mance and

Lord Wilson, thought that the time was not yet ripe to do so. This was for largely

pragmatic reasons.14 I have great sympathy with them. The case had started on

quite a different footing and so the evidence was not addressed to the issue of

assisted suicide. As Lord Mance put it, this was ‘an invitation to short cut

potentially sensitive and difficult issues of fact and expertise, by relying on

secondary material’.15

14
Shades of FM Cornford, Microcosmographia Academica (Cambridge, Bowes and Bowes, 1908)?
15
Para 177.

10
He was, of course, right about that. But my own view, shared by Lord Kerr, was

that the question could be answered by reference to principle rather than evidence.

It could confidently be concluded that the ban was over-broad (as the Canadians

would later put it when deciding that their own ban was unconstitutional). 16

Experience with comparable end of life decisions showed that a procedure could

be devised for identifying those people who should, exceptionally, be allowed

help to end their own lives.17 I too expressed the view that Parliament was much

the preferable forum in which the issue should be decided. Indeed, in a sense, it

is the only forum in which it can be decided, because only Parliament can change

the law. But having reached the firm conclusion that the law was not compatible

with the Convention rights, there was little to be gained and much to be lost by

not making a declaration of incompatibility (para 300).

It does seem to me that section 4 of the Human Rights Act has introduced an

important change to our constitutional arrangements, by expecting courts to make

the same sorts of judgment as are made by the courts in countries which do have

a written Constitution in which fundamental rights are entrenched, thereby

creating a feedback mechanism from the courts to the sovereign legislature. We

can accept, for the reasons given by Lord Sumption, that Parliament is the

preferable place for such decisions to be made; but if Parliament fails to act in the

16
Carter v Canada (Attorney-General) 2015 SCC 5, [2015] 1 SCR 331.
17
Para 114.

11
face of clear incompatibility, it is our duty to say so. As Lord Neuberger pointed

out, ‘difficult or unpopular decisions which need to be taken are on some

occasions more easily grasped by judges than by the legislature’ (para 104).

Perhaps there is an element of pragmatism on the part of Parliament?

Hence deference is, in my view, principally relevant when it comes to making

judgments about the justification for executive interferences with Convention

rights. We are required to decide whether an interference is ‘necessary in a

democratic society’ or whether a ‘fair balance’ has been struck between the rights

of the individual and the interests of society or the community at large. In many

contexts these are difficult things for judges to decide. The courts may well think

that political actors are better qualified to decide them – not so much because of

their democratic legitimacy as because of their practical competence. They know

much more about it than we can ever do.

Two examples spring to mind. In the Belmarsh case,18 seven out of the eight

judges in the majority (and I suspect also Lord Walker, the sole dissenter) were

prepared to take the government’s word for it that there was a ‘public emergency

threatening the life of the nation’ which would justify derogating from the right

to liberty in article 5. I put it bluntly (para 226):

18
A v Secretary of State for the Home Department [2014] UKHL 56, [2015] 2 AC 68.

12
 ‘Any sensible court, like any sensible person, recognises the limits

of its expertise. Assessing the strength of a general threat to the life

of the nation is, or should be, within the expertise of the government

and its advisers. . . . Protecting the life of the nation is one of the first

tasks of a government in a world of nation states.’

Lord Hoffmann famously dissented on this issue. But he did so, not because he

did not accept that there was credible evidence of a threat of serious terrorist

outrages, but on the basis that the government – and presumably the rest of us –

had misunderstood what a threat to the life of the nation was. Terrorist groups did

not threaten the life of the nation: terrorism does not threaten our institutions of

government or our existence as a civil community (para 96).

More difficult was the Lord Carlile case, in which we were asked to take the

government’s word for it that to allow a prominent Iranian dissident into England

in order to meet with Parliamentarians in the Palace of Westminster would

endanger our ‘fragile but imperative’ relations with Iran. We all agreed that the

court was the final arbiter of whether the undoubted interference in the free

speech rights of Ms Rajavi and the Parliamentarians was a proportionate means

of achieving a legitimate aim. But we also agreed that on some parts of the

analysis, the government was better placed than we were to make the judgment.
13
This was essentially a question of fact. How strong were the risks? As Lord

Sumption put it in Lord Carlile:

‘How is the court to determine where the balance lies if (i) it has no

means of independently assessing the seriousness of the risks or the

gravity of the consequences were they to materialise, and (ii) the

Secretary of State is not shown to have committed any error of

principle in her own assessment of them. . . . We are not in point of

law bound to accept the factual assessment of the Foreign Office

about the impact on our relations with Iran of admitting Mrs Rajavi

to the United Kingdom. But if we reject it we must have a proper

basis for doing so. In this case, there is none. There is no challenge

to the primary facts. We have absolutely no evidential basis and no

expertise with which to substitute our assessment of the risks to

national security, public safety and the rights of others for that of the

Foreign Office.’

This was, as he himself had earlier recognised ‘no more than a pragmatic view

about the evidential value of certain judgments of the executive’.

14
Far more difficult are those cases which turn on the justification for decisions of

the executive in matters of socio-economic policy. There is much to be said for

Dworkin’s dichotomy – between principle (involving moral rights against the

state) and policy (involving utilitarian calculations of public good and the

allocation of public resources). 19 But there are situations where principle and

policy overlap. We have had a torrid time with the benefit cap,20 the so-called

bedroom tax 21 and the revised benefit cap. 22 On the one hand, these were all

complaints of discrimination – indirect discrimination against women, direct

discrimination against disabled people, Thlimmenos discrimination (that is,

failing to treat persons in different positions differently) against lone parents. The

courts have tended to claim some expertise in recognising unjustified

discrimination: the House of Lords did so in the adoption case of Re G, for

example. One of the principal purposes of protecting fundamental rights is to

safeguard what may be vulnerable or unpopular groups or individuals from the

will of the majority.

On the other hand, the courts have tended to adopt the same approach as

Strasbourg in relation to measures of socio-economic policy, in particular when

dealing with welfare benefits: the test is whether the measure is ‘manifestly

19
R Dworkin, Taking Rights Seriously, p 22ff.
20
R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449.
21
R (MA) v Secretary of State for Work and Pensions [2016] UKSC 58, [2016] 1 WLR 450.
22
R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21, [2019] 1 WLR 3289.

15
without reasonable justification’.23 Even this has led to some sharp divergences

of view. Denying an extra bedroom where there was a clearly demonstrable

medical need for one was manifestly without reasonable justification. 24 But

depriving families with children of subsistence level benefits was not.25 There is

obviously deference here by the majority both to institutional competence and to

democratic legitimacy. But is there not also an even greater element of

pragmatism in it, not only here but also in Strasbourg?

Legitimate expectation

Another area where the courts might be accused of being guided by pragmatic

rather than principled considerations is legitimate expectation. The doctrine of

legitimate expectation is firmly presented as a principle. Essentially, a public

authority which has, by a promise or practice, conferred on a person a legitimate

expectation of a procedural or substantive benefit, may not frustrate that

expectation without justification. However, the underlying rationale for the

concept is expressed rather broadly: the prevention of abuse of power and the

promotion of good administration. A powerful exposition is that of Laws LJ in

23
Stec v United Kingdom (2006) 43 EHRR 47, adopted in Humphreys v Revenue and Customs
Commissioners [2012] UKSC 18, [2012] 1 WLR 1545.
24
MA, above.
25
SG and DA, above.

16
R (Bhatt Murphy) v Independent Assessor:26

‘The power of public authorities to change policy is constrained by

the legal duty to be fair (and other constraints which the law

imposes). A change of policy which would otherwise be legally

unexceptionable may be held unfair by reason of prior action, or

inaction, by the authority. If it has distinctly promised to consult

those affected or potentially affected, then ordinarily it must consult

(the paradigm case of procedural expectation). If it has distinctly

promised to preserve existing policy for a specific person or group

who would be substantially affected by the change, then ordinarily

it must keep its promise (substantive expectation). If, without any

promise, it has established a policy distinctly and substantially

affecting a specific person or group who in the circumstances was

in reason entitled to rely on its continuance and did so, then

ordinarily it must consult before effecting any change (the secondary

case of procedural expectation). To do otherwise, in any of these

instances, would be to act so unfairly as to perpetrate an abuse of

power.’

26
Also R(Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755, [2008] 7 WLUK 256,
(2008) 152(29) SJLB 29.

17
That all looks very precise. But the analysis has a repeated theme of fairness.

There is plainly scope for pragmatism to play a part in the determination of what

fairness requires in a particular context. When a court is testing whether there has

been an abuse of power, it is not confined to a Wednesbury review, but has itself

to weigh the impact of the frustration of the expectation on the individual or group

against the wider public interest in failing to uphold it.

The Supreme Court has recently looked at this area in the Finucane case27. The

question was whether the government should be held to a promise, made in 2004,

to hold a public inquiry into the death of the Belfast solicitor Patrick Finucane,

who had been brutally murdered by loyalist terrorists in front of his wife and

children in 1989. The requirements of good administration were again identified

as underpinning the doctrine. Hence the court rejected the notion that public

authorities could resile from their commitments simply because the person or

group to which such promises were made were unable to demonstrate a tangible

disadvantage.28

However, when considering whether the frustration of this legitimate expectation

was justified, the test adumbrated was one of fairness. The court accepted that it

should give great weight to ‘macro-political’ issues and that the holding of a

27
Re Finucane’s application for judicial review (Northern Ireland) [2019] UKSC 7, [2019] HRLR 7.
28
As had been suggested in United Policyholders Group v Attorney General of Trinidad and Tobago
[2016] UKPC 17, [2016] 1 WLR 3383.

18
public inquiry in the circumstances was properly a matter for the Prime Minister’s

political judgment. Lord Kerr said this:

‘Where political issues overtake a promise or undertaking given by

government, and where contemporary considerations impel a

different course, provided a bona fide decision is taken on genuine

policy grounds not to adhere to the original undertaking, it will be

difficult for a person who holds a legitimate expectation to enforce

compliance with it.’

Professor Mark Elliott has been critical of the reliance on the concept of ‘good

administration’ as the foundation for the doctrine of legitimate expectation. He

describes good administration as ‘a concept whose apparent capacity to support

what is, in reality, a catholic body of doctrine is attributable to nothing more than

its vacuity’.29 He complains of

‘an overarching problem that besets this area of administrative law

- namely, an unfortunate judicial tendency to seek to avoid difficult

doctrinal and normative questions by sheltering behind superficially

attractive but ultimately rather empty notions such as "good

administration" and "fairness". Such language may be intuitively

29
‘Legitimate expectation: reliance, process and substance’ (2019) 78(2) CLJ 260-264.
19
 appealing, but it is incapable of doing the sort of analytical heavy-

lifting that is required if the law in this area is to be placed on an

intellectually cogent footing that lends itself to coherent doctrinal

development.’

I am tempted to agree that this is a good example of the gap between theory

and practice about which Patrick Atiyah was writing all those years ago.

Legality

So can we find an area which not only says that it is principled but actually is

more principled than pragmatic? Could the doctrine of legality be such an area?

This is a rule of statutory construction. General words in an Act of Parliament

will not be read so as to permit an intrusion into fundamental rights. Parliament

can, of course, legislate to remove or restrict fundamental rights but it has to do

so in clear and express words so that the Parliamentarians can understand what

they are doing and be prepared to take political responsibility for doing it.30

30
R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, per Lord Hoffmann
at p 131.

20
A recent example is the case brought by the trade union, UNISON, challenging

the Order in Council imposing fees for bringing employment tribunal claims.31

The Supreme Court held that the general words in the Act empowering the Lord

Chancellor to prescribe tribunal fees were not clear enough to authorize setting

fees at such a high rate as to make it impossible, impracticable or irrational to

bring a claim. As the court explained, the purposes of the Fees Order were

legitimate – making resources available to the justice system, thus securing access

to justice, and deterring frivolous or vexatious claims, thus increasing its

efficiency. But that did not permit the Lord Chancellor to prescribe whatever fees

he chose if there was a real risk that people would be effectively prevented from

having access to justice. The Supreme Court had the benefit of evidence about

the impact of the fees which had not been available in the lower courts. Further,

as Lord Reed explained, ‘even where primary legislation authorises the

imposition of an intrusion on the right of access to justice, it is presumed to be

subject to an implied limitation. As it was put by Lord Bingham in Daly,32 the

degree of intrusion must not be greater than is justified by the objectives the

measure is intended to serve.’ (para 88)

The same principle was invoked in the Supreme Court’s decision in Evans,33 the

case in which a Guardian journalist had made a request under the Freedom of

31
R (UNISON) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409.
32
R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532.
33
R (Evans) v Attorney-General [2015] UKSC 21, [2015] AC 1787.

21
Information Act 2000 for disclosure of correspondence passing between the

Prince of Wales and various government departments over a few months in 2004-

5. The Information Tribunal, chaired by a High Court Judge, heard evidence over

several days, including the evidence of two Professors of Constitutional Law

about the Conventions governing the relationship between the heir to the throne

and the government. In a lengthy and carefully reasoned judgment, it concluded

that the public interest in disclosure of many of the letters outweighed the various

reasons given in the Act for refusing it. The Tribunal had, of course, read the

letters.

The Act contains a power, in section 53, for Ministers to override the decision of

the Tribunal and to veto disclosure if ‘on reasonable grounds’ they consider it not

to be in the public interest. Rather than exercising the right to appeal against the

Tribunal’s decision, the Attorney-General exercised the override power. Mr

Evans then brought judicial review proceedings to challenge the decision of the

Attorney-General. He failed in the Divisional Court but succeeded in the Court

of Appeal and, by a majority of five to two, in the Supreme Court. None of the

judges hearing the judicial review proceedings had seen the letters. They were

simply ruling on the lawfulness of the Attorney-General’s decision.

Lord Neuberger, with whom Lord Kerr and Lord Reed agreed, said this:

22
 ‘A statutory provision which entitles a member of the executive...to

overrule a decision of the judiciary merely because he does not agree

with it...would cut across two constitutional principles which are

also fundamental components of the rule of law. First... a decision

of a court is binding as between the parties and cannot be ignored or

set aside by anyone... Secondly, . . . decisions and actions of the

executive are...reviewable by the court at the suit of an interested

citizen. Section 53, as interpreted by the Attorney General’s

argument in this case, flouts the first principle and stands the second

principle on its head’ (paras 51, 52).

In his recent Reith lectures, Lord Sumption has characterized this

reasoning as saying that the government’s power to override the judicial

decisions of the Information Tribunal is such a bad idea that Parliament

cannot have meant it.

I think that this is rather different from the reasoning of Lord Mance. He

stated that any test must be ‘context-specific’, ‘in the sense that it must

depend upon the particular legislation...and upon the basis on which the

Attorney-General was departing from the decision’. It was clear that the

Attorney-General had to show that he had reasonable grounds for refusing

disclosure, which was a higher test than mere rationality. In considering

23
what is reasonable one must consider the factual investigation by the

Tribunal and the extent to which the Attorney-General can replicate that;

effectively, if a Tribunal is better equipped to make a decision, then a

Minister or the Attorney would need solidly reasoned grounds for issuing

a certificate. I agreed with Lord Mance. While our approach might be seen

as a pragmatic compromise, I prefer to think of it as a principled

interpretation of what the section actually says, in the light of the principle

of legality, which mandates a minimal intrusion upon fundamental rights.

Lord Sumption agrees with Lord Hughes, the dissenting Justice who said

that ‘the rule of law is not the same as the rule that courts must always

prevail no matter what the statute says’ (para 152). I agree entirely with

that.

The point I am making is that in cases such as these, the courts have been

prepared to construe Acts of Parliament in the light of the principle of

legality without a hint of deference or pragmatism, indeed some might say

quite the reverse. In the first substantive case to be heard by the Supreme

Court, Ahmed v Her Majesty’s Treasury, 34 the court held that the very

general words in the United Nations Act 1946, allowing the making by

34
[2010] UKSC 5, [2010] 2 AC 534.

24
Orders in Council of such provision as appeared necessary or expedient to

carry out the decisions of the Security Council, did not permit the Treasury

to make Orders in Council permitting it to freeze the assets of people

blacklisted by the Security Council without any sort of due process. This

was a classic application of the principle of legality. Furthermore, the court

refused the Treasury’s application to suspend its order. Although it did

have power to suspend the effect of any order, suspending an order

declaring something to be ultra vires and quashing it did not alter the fact

that it was void and of no effect. The court should not lend itself to

something which might obfuscate the effect of its judgment. Not a hint of

pragmatism there.

Conclusion?

I have convinced myself that, after all, there is a great deal of pragmatism

in public law. Pragmatism – ‘a pragmatic view about the evidential value

of certain judgments of the executive’ – is a more convincing rationale for

deference than democratic legitimacy. Essentially pragmatic concepts of

good administration and fairness are used to explain the workings-out of

the doctrine of legitimate expectation. And I expect that any competent

academic public lawyer could even find pragmatic considerations creeping

into our application of the principle of legality. The trouble is that real
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judges have to make judgments in real cases involving real people and it is

unrealistic to expect complete doctrinal coherence of them – though I

suspect that many people do.

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